Low Burden of Proof in a Civil Case

April 13, 2006

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When navigating the court system, a small business owner encounters certain risk factors inherent in litigation.

For example, the standard a plaintiff must meet to win a civil case (e.g., a claim based on negligence or breach of contract) is "preponderance of the evidence." This standard is fairly low and easy to meet. This can make the civil litigation system a serious risk factor for small business owners who find themselves defendants in actions, especially in light of other related risk factors (i.e., expert witnesses for hire, pre-trial discovery and right to a jury trial).

Under the preponderance of the evidence standard, the plaintiff needs only to establish a more-than-50-percent probability that the allegations are true. Thus, if a jury concluded that there was a 51 percent probability the plaintiff's claim was justified and a 49 percent probability that the defendant's assertions were true, the plaintiff would win, even though, essentially, the case is evenly split between the two parties.

In contrast, in criminal cases, the plaintiff (i.e., the government) must prove its case "beyond a reasonable doubt." This standard--which equates to the plaintiff establishing a more-than-90-percent probability that the allegations are true--is designed to prevent the conviction of innocent persons. It offers significant protection to innocent defendants. Unfortunately, this standard, and its protection, applies only in criminal cases.